Defamation law needs to be reviewed

Right from the inception of time, the need for clearly defined laws to govern man’s existence and his relationship with all around him has never been in dispute. We all agree that fidelity to the law is the surest pathway to an orderly and harmonious society. It is to the law that the society turns to even the scales of justice whenever they are disturbed.


But when the law itself turns out to be oppressive, one cannot help but shudder at the thought of living in a society governed by it. Life becomes short and brutish. Matters are not made any better by arbiters whose commitment to upholding the rule of law is seriously in question. In an attempt to stave off such a scenario in Kenya, vetting of judges and magistrates is currently in progress.

This exercise was long overdue granted the turpitude and sheer averseness to justice that had become the defining hallmarks of the Kenyan judiciary. Be that as it may, it is my humble submission that ridding the judiciary of judges of questionable character and replacing them with men and women whose fidelity to the law is not in doubt will not guarantee us a society in which justice is reigning supreme. Doing so is not an end but a means to an end. Those conversant with Kenyan laws are unanimous that most of them are not only annoyingly old fashioned but oppressive as well. Some predate the colonial and even pre-colonial periods. Precedent established out of such laws only serves to perpetuate oppression. Judicial officers, especially in the lower courts have no option but to apply the precedent established by the higher court.

Take the law of defamation, for instance. A comparison of our law of defamation and that of advanced democracies like the US, Britain among others leaves one aghast at our unwillingness to make right what is manifestly wrong. Bearing in mind the extremely critical role played by the media, the US carried out the First Amendment of its constitution. The motivation behind this amendment was to uphold the freedom of the press. In 1964 in New York Times Co. versus Sullivan, the US Supreme Court held that public officials could only win a suit for libel after demonstrating “actual malice” on the part of reporters or publishers. Actual malice was defined as “knowledge that the information was false” or that it was published with “reckless disregard of whether it was false or not”. Currently this decision also applies to individuals who are not necessarily public officials but wield considerable clout. The standard for private individuals remains considerably lower. In 1988 in Hustler Magazine versus Falwell, the US Supreme Court further ruled that satire, however scathing and ruffling is protected by the First Amendment and cannot sustain a defamation suit. It overruled a decision by the jury to award, Falwell, a well-known American preacher $200,000 in damages.

Consequently in the US, there is no demarcation between a public figure’s public and private life. The public has a right to thoroughly scrutinise the private and public life of their leaders. And who can fault them anyway? Is it not the right of the public to know who they are entrusting the reigns of leadership with? How can they know who they are about to elect or appoint to high office unless he or she comes under the public microscope? And why would anyone who is motivated by a desire to offer sound leadership frown at the prospect of his would be subjects knowing who he or she is? A public figure can hardly succeed in a defamation suit in the US.

This is the law in the world’s superpower and I dare say that is how it should be across the globe. Back home we are still steeped in the erroneous mentality that a leader’s private life is a no go zone for the media. As a result whenever influential individuals sue the media for defamation, they are almost guaranteed of a substantial amount of money in damages. The Kenyan High Court has established a precedent whereby at the very outset of a libel suit, the media is presumed to be on the wrong. There is this misplaced perception that anyone that has been painted in a negative light by the media has suffered irreparable harm and is entitled to damages.

But the question we should ponder, as a country is, between public interest and private interest, which one should take precedence? Is it not logical that people fronting themselves for leadership positions be exposed for who they truly are? And who is better placed to serve as a window through which Kenyans can have a glimpse into their leaders' private life other than the media? True, the media may once in a while go overboard. But should it not be excused given the centrality of the role it plays?

Lest it escapes our attention, Article 34 of the constitution guarantees freedom of the press. It cushions the media from unnecessary interference or censure by the state. Article 24, the limitation clause, further states that this right shall not be limited except in accordance with the law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

Despite these clear provisions of the country's fundamental law, the obsession with censuring the media is still at a record high. The jurisprudence from our courts leaves one chagrined at the humongous fines slapped on media houses whenever they are sued for defamation. This has encouraged public figures to scurry to the courts whenever their underhand dealings are exposed by the media. Needless to say, this an unfortunate and dangerous trend. It makes nonsense of Kenyans' right to information as enshrined in Article 35 of the constitution.

It is time courts guard against being used by prominent people to gag the media. The Defamation Act is also in urgent need in reform to accord with the constitution.

This article was published in the Star Newspaper on May 26,2012